You are currently viewing Court Updates – #125: CF 1132/2015 Mombasa Court – Republic versus Abdurahman Mahmoud Sheikh and 8 Others 3127 kg ivory
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Court Updates – #125: CF 1132/2015 Mombasa Court – Republic versus Abdurahman Mahmoud Sheikh and 8 Others 3127 kg ivory

March 7th, 2023 (hearing): While not declared as such, and reading between the lines, it was finally time for the Office of the Director of Public Prosecutions (ODPP) to capitulate and throw in the towel. This was not a day of presenting evidence, (although some evidence was presented), this was a day of damage control. More below….

L to R: Abdurahman Mahmoud Sheikh, his half brother, father, and 3 other accused in Mombasa court for April 25th, 2015 Thailand seizure
Initial charge sheet page 1
Initial charge sheet page 2

#125 is a number assigned indicating this seizure has a link(s) to the Kromah cartel and its ivory was not DNA analyzed.

OVERVIEW

On April 25th, 2015, customs officials at Laem Chabang port (Bangkok, Thailand) intercepted a sea borne container from Mombasa and found it to  contain 3127 kg of elephant ivory. The shipment was declared as tea leaves, which it did in fact, also carry.

Three weeks later, on May 16th, 2015, Singapore authorities seized a container declared as tea leaves but found to also contain 1783 pieces of ivory, 5 rhino horn and 23 lion’s teeth total weight coming in at approximately 4600 kg.

Subsequent investigation led to charges against nine individuals for the Thailand seizure only.  Arrest warrants were issued for two others.

As part of this investigation, a number of vehicles were seized and bank accounts frozen, dealt with primarily under Miscellaneous Application 62 of 2015. MCA 62/2015 is not covered in this update. 

Court Updates

Presiding Magistrate: Hon. Martha Mutuku – Chief Magistrate

State Counsel: Jami

Defence Counsel: 

  • J. Magolo
  • Gakuki
  • Birir
  • Ratemo

Previous Presiding Magistrates:

  • Chief Magistrate Evans Makori                   Feb 2017 – Sep 2021
  • Chief Magistrate T. Matheka                       Sep 2016 – Feb 2017
  • Senior Principal Magistrate S. Rotich        Aug 2015 – Sep 2016
  • Chief Magistrate S. M. Shitubi                    Jun 2015 – Aug 2015

Previous State Counsel: 

  • Mulamula
  • Wangila
  • Jami
  • Muteti

ACCUSED:

  1. Abdurahman Mahmoud Sheikh aka Said Juma Said
  2. Sheikh Mahmoud Abdurahman 
  3. Mahmoud Abdurahman Sheikh
  4. Lucy Muthoni Kahoto (KRA)
  5. Musa Jacob Lithare
  6. Samuel Mbote Mundia
  7. Salim Mohamed Juma Khamisi
  8. Abbasi Issa Rashid
  9. Kenneth Mwangi Njunga (Njuguna)

Warrants Issued: Nicholas Jefwa and Samuel Jefwa

CHARGED:

  1. Between March 15 and April 26, 2015 at Mombasa, jointly with others, contravened Sec 92 WMCA to wit…..dealt with wildlife trophies of an endangered species namely 511 pieces of ivory weighing 3127 kg without a license from the Kenya Wildlife Service.
  1. Between March 15 and April 26th, 2015 at Mombasa, jointly with others not before court, contravened Sec 200(c)(ii) EACCM to wit…..exported to Thailand restricted goods from Kenya namely 511 pieces of ivory weighing 3127 kg loaded in container FCIU 5235796 valued at 576 million Kenya shillings without a permit issued by by the Kenya Wildlife Service.
  1. Between 15th March 2015 and 20th May 2015 in Mombasa, with others not before the court, contravened Section 3 (c) as read with Section 4 of the Prevention of Organised Crime Act  to wit:acted together and in concert with others to deal game trophy namely 511 pieces of ivory weighing 3127 kilograms without a licence. 
3127 kg of ivory seized in Thailand on April 25th, 2015. Laos was the intended destination.
Photos taken of the tea loading process at Siginon Freight in Mombasa

COURT PROGRESS

Before Honourable Chief Magistrate Martha Mutuku, Mombasa Court 1

March 7th, 2023 (hearing): This was scheduled to be the last day of the prosecution’s case. Four witnesses were due to testify, only one was present.   The explanation for absence? The Cybercrimes officer was unable to travel (no explanation given), the scene of crime officer was unwell and the third officer involved in an active investigation and could not attend. 

The reason that this was not a bigger issue than it should have been? While not declared as such, and reading between the lines, it was finally time for the Office of the Director of Public Prosecutions (ODPP) to capitulate and throw in the towel. This was not a day of presenting evidence, (although some evidence was presented), this was a day of damage control.

Senior Superintendant James Githinji of the Directorate of Criminal Investigations (DCI) was the lone prosecution witness. He was on the stand for almost two hours. Thirty minutes of his testimony was dedicated, on direct questions from prosecutor Jami Yamina, as to how the Kingdom of Thailand had not cooperated with Kenyan authorities in this investigation. 

Much of his testimony was actually a summary of the initial investigation, some was actual evidence, some was unsupported.

In essence, on March 21st, 2015, a container contracted by Nicholas Jefwa went to Siginon Freight Services and was loaded with bags of tea. The container left a few hours later and instead of proceeding to a customs control area, went to a house in Nyali (east Mombasa). It remained there for 2 days until it was driven to the port where the container cleared customs primarily on the strength of it carrying tea which was at that time exempted from scanning. (it was implied that ivory was loaded on the container during those two days.

The investigation subsequently revealed that the Nyali house was leased to a Said Juma Said whom , it was alleged, was the same as Abdurahman  Mahmoud Sheikh, the first accused. Inside the home, a receipt was found that listed items from an area grocery store which, through loyalty points, was linked to the second accused, Sheikh Mahmoud Abdurahman. The father of the first two accused, was linked to the property as he had been seen there at least once in their company.  That was unsupported by evidence.

Inside the Nyali property, were found ivory fragments, a weighing scale, an electric grinder, scratch pads, and empty bags, similar to those used to package the tusks. The ivory fragments were confirmed to be elephant ivory.

The problems were then outlined regarding the required assistance from the Kingdom of Thailand that was not forthcoming. A team from Kenya did travel to Thailand to gather evidence and take DNA samples but were at the last minute denied access to the ivory or any evidence related to this seizure.

This began a long paper exchange between Kenya and Thailand over the required international mutual legal assistance.  Thailand did provide an analysis to Kenyan authorities that the ivory found in the container was actually elephant ivory but it was not in a format to pass the rules of evidence.

Of note, and not specifically related to the trial at hand, was the testimony from SSP Githinji that the Jefwa brothers were in Kenya and apparently under the protection of anticipatory bail through the High Court, pending their statements to investigators and decisions by the ODPP on how to best proceed. 

It was concluded that there was absolutely no evidence whatsoever relating to Salim Mohamed Juma Khamisi or Abbasi Issa Rashid, who were drivers/staff under the employ of the first three accused. Evidence against Samuel Mundia, a taxi driver of the Jefwa’s, was provided in the last minute of SSP Githinji’s testimony, in that he (Mundia) assisted the Jefwa’s in their escape from Kenya. This was presented more as an afterthought. There was also no evidence against the father, Mahmoud Abdurahman Sheikh, besides the fact that he had been seen once at the Nyali property. There was no witness who presented that fact, no date and time when that observation was made.

Mention was made of the assets recovery investigation that was initiated but fizzled out.  While vehicles were seized and accounts frozen, all that could be said was that amongst the accounts of the three primary accused, were some transactions for which the accused could not explain. It was agreed on cross examination that there was no transaction in their accounts that corresponded to a sale or transportation of 3127 kg of ivory.

In conclusion, the conduct of this investigation and prosecution raises many questions.  One is left with the distinct feeling that this investigation and prosecution, like so many other prior failed ivory prosecutions, is being orchestrated by a hitherto unknown force at a high level. 

The court adjourned to May 11th, 2023, by which time written submissions will be submitted as to whether the prosecution has provided a prima facie case for the defence to answer.  It is unlikely to meet that threshold.

*****************

March 6th, 2023(hearing): Two prosecution witnesses testified today. Dr. Ogeto Mwebi, of the National Museum of Kenya, testified that he received 5 envelopes from investigators of what were believed to be elephant ivory fragments.  He conducted a microscopic analysis and determined that they were from ivory tusks but he could no say if they were from savannah or forest elephants. His report on the findings was dated June 4th, 2015.

The second witness was Nelly Wangare. In 2015 she was employed in a  managerial position as a property agent with Mombasa Investments. She co-signed the lease with the landlord  and the leasee who provided identification at the time in the form of a Tanzanian passport in the name of Said Juma Said. This was done in August 2013. She could not identify the man who signed the lease as Said Juma Said.

The hearing is adjourned when the last two police witnesses are set to testify, including the investigating officer.

*****************

November 16th, 2022(hearing): DPP represented by Senior Principal Prosecution Counsel Jami Yamina, advised the court that they were unable to proceed and requested an adjournment and fresh date.  He had just been advised by the IO (investigating officer) that there had been challenges in having the last five witnesses to attend.  One was on other duties in Northern Kenya, one was out of the country one was on annual leave and one was unwell.

Mr. Gakuhi Gakue, today representing all accused (meaning that they had been given a heads up for the adjournment request), stated that all witnesses are public officers and there should not have been a problem having them attend.
 
Chief Magistrate Mutuku permitted the adjournment but put DPP on notice that this is the last one.
 
All remaining prosecution witnesses are to testify on the next hearing dates of March 6th and 7th, 2023.
 
*****************
September 6th, 2022 (mention): All accused present. DPP represented by Mr Kituma, the usual prosecutor for court one.  CM Mutuku admonished advocate Jared Magolo, for his clients being late the day previous.
 
Hearing date set for November 16th.
 
******************
 
September 5th, 2022 (mention):  Accused #2,#3 and #7 absent when the case was called, apparently on their way. DPP Mr. Kituma presented a message from Senior Principal Prosecution Counsel Jami Yamina, that the IO’s statement was not yet complete.
 
As three of the accused were absent, the case was put over to the following day.
 
********************
 
July 14th, 2022 (application hearing):  This scheduled hearing did not happen. Senior Principal Prosecution Counsel Jami Yamina introduced his argument by stating that at the time this prosecution began (and he was part of the DPP team at the time) his 7 year old son had not been born.
 
Mr. Jami continued by advising the court that the DPP was withdrawing their application of May 24th, 2021 (new evidence application) to allow the trial to continue to its logical conclusion. He attributed the one of the primary causes of the delays to date could be attributed to the complexities of the mutual legal assistance request submitted to Thailand.  He also had a further statement from Chief Superintendent J. Githinji relating to this investigation that was to be copied to the defence.
 
September 5th agreed as the next mention date to set further hearing dates.
 
**********************
 
June 29th, 2022 (application hearing): DPP Kituma holding brief for Mr. Jami. Mr Magolo and Gikue present for the defence and all accused present except of A#4 who resides in Nairobi.
 
Mr. Jami was in Nairobi for another matter so hearing adjourned to July 14th.  The accused’s attendance dispensed with.
 
*********************
 
March 17th, 2022 (application hearing):
Chief Magistrate Mutuku not sitting so all matters adjourned.  This case adjourned to June 29th.
 
**********************
 
January 17th, 2022 (Application Hearing): Mr. Ratemo absent for A#5 and A#7.  DPP reluctant to proceed. Defence request new hearing date. The attendance of all accused disposed with.
 
 
 
October 25th, 2021 (Mention): before CM Mutuku, S/C Alex Kituma. Hearing date set for January 17th and presence of accused dispensed with. It was ordered that all proceedings to be typed.
 

***********************

September 14th, 2021 (Hearing): This had been scheduled as a day that defence would present arguments on the new evidence application in front of CM Makori in court 1. However, there was a communication breakdown as court 1 was being used by CM Nyaloti and DPP Jami was not present, even though all accused and their advocates were.  CM Makori came into the courtroom while CM Nyaloti was on a break, called the case and adjourned it to October 25th. 

***********************

July 5th, 2021 (Hearing): The prosecutor was absent, hearing adjourned to September 14th.

***********************

June 10th, 2021 (Mention): DPP Jami advises that he has sent the new evidence application to all defence advocates. They advise that they will be replying orally. July 5th set for hearing.

***********************

May 27th, 2021 (Mention): This was slated for a mention but it did not happen in court. DPP Mulamula advised that the case had been adjourned in chambers to June 10th. 

Note: This is a work in progress – 50+ more court sitting dates to be added
FILE CF 1132/15
SEIZURE DATE April 25th, 2015
LOCATION Port Laem Chabang, Bangkok, Thailand
LISTED DESTINATION Laos
SEIZED WEIGHT 3127 kg
SEIZED DESCRIPTION 511 tusk pieces in sisal bags. The bags found matched those found in the May 16th Singapore seizure.
OTHER CONTRABAND
POINT OF ORIGIN Not confirmed
POINT OF ORIGIN DNA The seized ivory has not been analysed for DNA.
TRANSIT POINTS
VALUE KSh 570 million (USD $5 million+)
COVER LOAD Tea Leaves
DECLARED AS Tea Leaves
EXPORTER CONSIGNOR Almasi Chai; Potential Quality Supplies
IMPORTER CONSIGNEE Keshav Traders, Dubai; Soupha Song Import-Export Co,Lao; Van An Co. Ltd, Da Nang, Vietnam
CLEARING AGENT FREIGHT FOWARDER Siginon Freight Services Limited
SHIPPING AGENT Rais Shipping Services (Kenya) Ltd.
SHIPPING LINE_SHIPS Cape Moss; RHL Felicitas
CONTAINERS/MODE OF TRANSPORT FCIU 5235796 20'
ASSOCIATED VEHICLES KNY 944 delivered the container
CONNECTIONS Numerous - see 'Linkages' below.

Case facts can be read at:

  1. #38: May 16, 2015 – 4.6 tonnes of ivory from Mombasa seized in Singapore tea shipment.
  2. The brothers Jefwa – wanted or not?
  3. Ivory case now over 50 sittings in Mombasa court.
  4. Mombasa magistrate orders DPP to close its case.
  5. New information for Mombasa court to ponder as U.S. links Kenyan ivory to West African cartel.
  6. New evidence application in ivory case – legitimate or facade?
  7. New evidence application withdrawn one year later.

Thai customs seize 511 pieces of elephant ivory destined for Laos

Three-tonne haul, marked as tea leaves from Kenya, is second massive seizure in less than a week of elephant tusks from Africa bound for Laos 
Agence France-Presse
 
Mon 27 Apr 2015 10.48 BST
 
More than three tonnes of elephant ivory have been found at a Thai port stashed in a container shipped from Kenya, customs said on Monday, the second huge haul of tusks from Africa in less than a week.
 
The discovery, which would be worth millions of dollars on the black market, was destined for Laos where the illegal ivory trade flourishes.
 
Some 511 pieces of ivory was found on 25 April in a container “marked as tea leaves transported from Mombasa, Kenya, and on to Laos”, Thai customs said in a statement.
 
Scores of whole tusks – some nearly two metres long – were among the pieces seized.
 
A record four tonnes of African elephant ivory was seized at Bangkok’s main port on 20 April in a container that arrived from the Democratic Republic of Congo and was also destined for Laos.
 
Once in neighbouring Laos, authorities believe the ivory would likely be sold on to buyers from China, Vietnam or back into Thailand, countries where ivory ornaments are coveted despite fears the trade is pushing wild elephants to extinction.
 
Laos “is increasingly being used as a major transit point for such large volumes of illicit ivory and other wildlife products”, Chris Shepherd of conservation group Traffic told AFP.
 
“The increase in large-scale seizures is of great concern. Whether the ivory is coming from freshly killed elephants, or from stockpiles of ivory in Africa, needs to be investigated,” he added.
 
Poaching and conflict has destroyed large numbers of African elephants in the wild, prompting experts to warn the species could be wiped out within decades.
 
Thailand has launched a crackdown on the ivory trade amid mounting international pressure.
 
The Global regulator, Convention on International Trade in Endangered Species of Wild Fauna and Flora (Cites) has threatened an international ban on Thailand’s entire wildlife business if it fails to curb the trade in tusks on its soil.
 
Under Thai law, registered ivory from domesticated Thai elephants can be sold. But experts say that loophole allows criminal gangs to launder poached African ivory through the kingdom.
 
Thailand’s fishing industry is also under scrutiny for exploitation of migrant workers and over-fishing.
 
Thailand is the world’s third largest seafood producer and an EU ban could cost it around $1bn (£660,000) annually.
 
The Mombasa area home leased to Said Juma Said alias Abdurahman Mahmoud Sheikh where police found evidence suggesting that it was being utilised as an ivory collection point for the 3127 kg ivory shipment from Mombasa in 2015

Tusks were court evidence, say Thai officials

Saturday May 2 2015

 In Summary

  • “Most of them were the tusks earlier seized and sent back to their origins in Africa whereas some were those having been kept as evidence in some countries,” said Gen Dapong.
  • “Ivory is being stolen from the courtrooms. There is a lot of corruption, and many government officers are involved in facilitating the traffickers,” she stated.
  • KWS spokesman Paul Gathitu said the corporation would be ascertaining the origin of the ivory: “This week we should be able to have investigated and established that court case evidence is being stolen and resold as claimed or not”.
 
Part of the massive ivory haul seized in Thailand was prosecution evidence stolen from Kenyan courts and reshipped to Bangkok.
 
Thailand’s Minister of Natural Resources and Environment Dapong Rattanasuwan and Director-General of Customs Somchai Sujjapongse told the media that they had reshipped seized ivory to Kenya to be used as evidence against ivory traffickers, only for the same consignment to find its way back to the Asian country last week.
 
The revelations have raised questions about the role of the Judiciary, the Kenya Revenue Authority (KRA), Kenya Ports Authority officials and police officers in the international criminal enterprise that fans poaching.
 
“Most of them were the tusks earlier seized and sent back to their origins in Africa whereas some were those having been kept as evidence in some countries,” said Gen Dapong.
 
On April 25, Thailand’s Customs Department seized 511 elephant tusks that had been declared at the customs office as 11 tonnes of tea leaves from Kenya destined for Laos.
 
Environment Secretary Judi Wakhungu promised to investigate how the ivory left Mombasa without detection.
 
The Sunday Nation has established that a criminal enterprise involving Kenyans and foreigners is involved in stealing and reselling ivory used as evidence against poachers in court cases. The syndicate is run from Asia and has major operations in Kenya.
 
A top Judiciary official told the Sunday Nation that the Judiciary does not have a strong room to keep the evidence.
 
“The evidence like ivory is presented to court by KWS [Kenya Wildlife Service] and the prosecutors who return it to their strong rooms,” said the official, who is not authorised to speak to the media.
 
STOLEN FROM COURTROOMS
 
Yesterday, Paula Kahumbu, the executive director of Wildlife Direct, a non-governmental organisation involved in conservation, said that ivory is stolen from courts and resold.
 
“Ivory is being stolen from the courtrooms. There is a lot of corruption, and many government officers are involved in facilitating the traffickers,” she stated.  Ms Kahumbu said that Kenya is now the leading transit route for ivory traffickers in the world.
 
“Containers filled with ivory are passing through Malaba, Lunga Lunga to the Mombasa port for onward shipping to Asian markets,” she said.
 
KWS spokesman Paul Gathitu said the corporation would be ascertaining the origin of the ivory: “This week we should be able to have investigated and established that court case evidence is being stolen and resold as claimed or not”.
 
KRA chief manager Maureen Njongo said investigation had begun into the matter: “The case is intricate and involves a lot of work to establish the facts”.
 
According to Traffic, a wildlife trade monitoring network, ivory trafficking is a sophisticated transnational crime that involves elephant poaching in protected areas and orchestrated theft of government-held ivory.
 
The cartels also use money laundering, tax evasion and other forms of economic subterfuge to hide profits and other evidence of financial dealings. In the report, Traffic says Kenya is a major transit route for ivory trade. Ivory passing though the Mombasa port is sent to Malaysia, Vietnam, Cambodia and United Arab Emirates before ending up in either Thailand or China.
 
A recent survey by the non-profit Wildlife Direct found that that police carry out shoddy investigations, resulting in a high number of acquittals, something that is feeding ivory trafficking.
 

POLICE HUNT FOR TANZANIAN, KENYAN BROTHERS LINKED TO SH570 MILLION IVORY HAUL

May 25, 2015
Daily Nation

Detectives hunting for officials of Potential Quality Services transport company linked to the contraband seized in Singapore.

In Summary

Investigations show that he, a senior Kenya Revenue Authority staff and a government official were behind the haul.

Also being sought are two brothers, Mr Samuel Jefwa and Mr Nicholas Jefwa, who are officials of Potential Quality Services.

KRA has also written to both Interpol, Singapore and Thailand to assist its investigations into the case.

Detectives have for the second time interrogated staff at Siginon Freight in Shimanzi, Mombasa, where it was established that the initial cargo, blended tea, was parked into 220 bags on April 19.

Police are hunting for a Tanzanian who had rented a house in Nyali, Mombasa, in connection with the Sh570 million ivory haul seized in Singapore last week.

Investigations show that he, a senior Kenya Revenue Authority (KRA) staff and a government official were behind the contraband.

Also being sought are two brothers, Mr Samuel Jefwa and Mr Nicholas Jefwa, who are officials of Potential Quality Services, the company that exported the container in which the contraband was shipped.

The two have been exporting 40-foot containers disguised as tea consignments since last year.

PRIME SUSPECTS

“The two prime suspects are still at large. However, efforts to locate them have been intensified through the inter-forum agencies dealing with this matter, including the National Police Service,” said Ms Maureen Njongo, the KRA spokesperson.

The Tanzanian has rented the house since 2013.

However, a rental agent associated with the house told detectives that the tenant had not provided any identification documents.

He would pay his rent in cash and was never issued with any receipts, he said.

BROTHERS ON THE RUN

A senior police officer involved in the investigations on Monday said the two brothers are suspected to have fled to unknown destinations through Uganda.

“Their mobile phones were active and were last used at the Busia border. We, however, do not rule out the possibility that they could be in the country,” he said.

KRA has also written to both Interpol, Singapore and Thailand to assist its investigations into the case.

Detectives have, for the second time, interrogated staff at Siginon Freight in Shimanzi, Mombasa, where it was established that the initial cargo, blended tea, was parked into 220 bags on April 19.

The two containers then left Siginon on April 19 and 20 and arrived at the port for loading onto the vessels Cape Moss and Cape Madrid, respectively. 

RHINO HORNS

On April 27 and May 19, the illegal consignments of ivory and rhino horns were seized in Thailand and Singapore, respectively. 

Potential Quality Services made arrangements for transporting the containers and it has been established that Mr Nicholas Jefwa gave Siginon the blending instructions from the shipper, Almasi Chai (Kenya).

However, the documents releasing the containers were signed by his brother, Samuel.

The two lorries used to ferry the cargo, registration numbers KNY 944 and KSM 783, were also impounded in Mikindani and later moved to the customs warehouse.

“The owner of the two trucks has also recorded a second statement further to the one earlier statement made at Port Police,” Ms Njongo said.